P L D 1962 (W (PLP)

The facts leading up to this petition for revision are that one Sikandar brought a suit against two persons, Muhammad Zuber and Fazal Rahman, for possession as owner of 1 Kanal 6 Marlas of land comprising Khasra No. 3235, situated in village Jred, Tehsil Mansehra, District Hazara. Fazal Rahman failed to appear in spite of service, and ex parte proceedings were taken against him, the plaintiff's suit being decreed with cost on the 21st of March 1956. Muhammad Zuber filed an appeal in the Court of the learned District Judge, Hazara. On the 5th of September 1959, during the pendency of the appeal, learned counsel for the appellant made an application to the effect that as Fazal Rahman defendant had died before the passing of the decree of the trial Court, the decree was a nullity, Sikandar respondent filed a replication In which he admitted the death of Fazal Rahman, but contended that it took place after and not before the decree. A preliminary issue was accordingly framed by the learned District Judge :- "Whether Fazal Rahman died before the decision of the suit by the trial Court, if so, what is its effect on the suit and the appeal ? (O. P. Parties)." After considering the evidence recorded by the Sub-Judge, Mansehra, the learned District Judge held that Fazal Rahman had died on the 6th of March 1956, i.e., fifteen days before the passing of the decree and observed :- "From the statement of the Patwari and Girdawar Aurangzeb Khan It appears that the defendant Fazal Rahman was in possession of the suit property who had died about 15 days before the decree was passed, and so in view of the authorities cited above I have come to the conclusion that decree passed In favour of the plaintiff-respondent is a nullity and thus it abates. * * * * * * * * "As a result of my decision on preliminary issue that the suit has abated as a whole, having been decided against the (sic) dead man, I accept this appeal, set aside the judgment and decree of the Court below, and dismiss the plaintiff's suit with costs throughout."

2. The correctness of the above finding has been challenged by the petitioner in revision.

3. Before proceeding further, it is necessary to deal with a preliminary objection raised by learned counsel for the respondent. He pointed out that Muhammad Zuber, the remaining defendant, had also died during the pendency of the present proceedings, and argued that as his legal representatives had not been brought on the record within the statutory period of ninety days, the petition abates.

4. There is a conflict of judicial opinion on the question oil whether the principle of abatement applies to revision petitions. A In Pendyala Basawanjanayulu v. Lingamulla Ramalingayya (A I R 1938 Mad. 115), it was held that Order XXII, rules 3 and 4, C. P. C., are applicable to proceedings under section 115 and that an order passed by the High Court on a petition under that section in ignorance of the fact of the death of the petitioner more than ninety days previously is one made without jurisdiction and is a nullity. Dealing with the argument raised before him that In the case of section 115, C. P. C. it does not matter whether the parties are dead or alive at the time the order is passed, since, in such a case the matter is entirely one between the High Court and the trial Court, the learned Judge remarked "To admit such a principle would be to deny the fundamental right of parties to a litigation to be heard." The further contention of learned counsel that Order XXII, C. P. C. does not apply to proceedings under section 115 and that there can be no abatement in the case of a petition filed under that section was also repelled, the learned Judge holding that if the above order does not apply, the natural consequence Is that on the death of a party the petition abates at once.

5. The view that the principle of abatement applies to revision petition has also been taken by the Calcutta High Court.

6. On the other hand, in Nawab Syed Kazim Hussain v. Seth Pearey Lal (A I R 1939 Oudh 277) it was laiJ down that the provisions of Order XXII, rules 1 to 11, are applicable only to suits and appeals and that there is no provision of law laying down a procedure for sub stitution in place of a deceased, party in a revision application, the reason being that section, 115 is absolutely discretionary with the High Court, and the same view was adopted in Baksho v. Plaro (A I R 1920 Sind 124), in which the learned Judges observed: "There is, no doubt, a great deal of analogy between revision applications and appeals, but they are not identical. In the case of an appeal the matter is one between parties and it is obviously for the parties to see that all necessary materials for the Court to decide are before the Court. In the case of a revision application the matter is different. An order in revision is made by the Court of its own motion to redress grievances with come to its notice. The order in revision is of its very nature an essential act of the Court. No doubt the Courts do not pass orders which would prejudice any party to the proceedings without hearing them, and therefore it will be necessary to issue notices to all the parties, and this seems rather a reason why the Court, if it discovered that certain of the parties were dead and not properly represented, should see that they were properly represented. It seems to us therefore that the whole theory of abatement is inapplicable to revision applications, * * * * * ."

7. With the utmost respect, I agree with the view taken in the Oudh and Sind authorities cited above. Moreover, Article 176 of Schedule I of the Limitation Act, relied upon in Pendyala Basawanjanayulu's case runs- "Under the same Code (C. P. C.) to have the legal representative of a deceased plaintiffo r of a deceased appellant made a party. Ninety days The date of the death of the deceased plaintiff or appel lant." If construed strictly, there is no doubt that the Article in question applies only to the legal representatives of deceased plaintiffs or appellants. There is no specific Article in the Limitation Act prescribing a period of limitation for impleading the legal repre sentatives of the deceased petitioner in revision proceedings, and with great respect, it appears to me that if the principle of abatement is held to apply to revision petitions, the only Article of the Limitation Act which can be pressed into service is 118, which prescribes a limitation of three years for applications for which no period of limitation is provided elsewhere in the Schedule or by section 48 of the Code of Civil Procedure.

8. On this view of the matter, since the death of Muhammad Zuber undoubtedly occurred within three years of the application to bring his legal representatives on the record, it 9s within time even if the principle of the abatement be held to apply.

9. On the question of the effect of the death of Fazal Rahman before the decree of the trial Court, the view of the learned District Judge that the decree thereby became an absolute nullity is, in my opinion incorrect. With respect, the correct view appears to me to be that laid down in Tota Ram v. Kundan (A I R 1929 Lah. 784), in which Shadi Lal, C. J. observed "As pointed out in Goda Coopooramier v. Soondarammall (1910) 33 Mad. 167, a decree passed after the death of a party to the suit or appeal is not an absolute nullity. Such a decree is not void nor is it open to collateral attack, but it is erroneous and liable to be set aside. "The mistake can be rectified if the Court sets aside the proceedings taken after the death of the deceased party and directs that the case be retried in the presence of his legal representative from the stage which it had reached immediately before the date of the death. This procedure places all the parties to the litigation in the same position in which they would have been if the legal representative had been impleaded at the proper time." The above principle is particularly applicable in the present case, since Fazal Rahman died only fifteen days before the decree and there is nothing on the record to show that the opposite-party acquired knowledge of his death in the interval.

10. Learned counsel for the petitioner argues that in the circumstances of the present case it is unnecessary to remand the proceedings to the trial Court. It is true that in Tota Ram's case Shadi Lal C. J. considered a remand to be unnecessary on the facts before him, but those facts are not on all fours with the present. In the former case the deceased, Chuni Lai, had produced his evidence before he absented himself from the Court and subsequently died, whereas in the present case ex parte proceedings were taken against Fazal Rahman from the outset. No doubt the evidence of the parties had closed on the 28th of January 1956, before the death of Fazal Rahman, but it would have been open to him at any time before the passing of the decree to appear before the Court and apply that the ex parte proceedings be set aside, and if he had satisfied the Court that there was good cause for his absence, he might have succeeded. However unlikely such a contingency my appear to be, it cannot be excluded, and the same right undoubtedly vested in his legal representatives. To deprive them of it would, therefore, prejudice them.

11. I accordingly accept the petition and set aside both the order of the learned District Judge dismissing the suit and the decree of the trial Court. The case is remanded to the trial Court with the direction that further proceedings be taken from the stage they had reached immediately before the date of the death of Fazal Rahman. Costs of this petition will abide the event.

12. It is unnecessary to pass any specific order bringing the legal representatives of Fazal Rahman on the record of the trial Court, since they were impleaded in the Court of the learned District Judge, and as pointed out by their Lordships of the o Privy Council in Brij Indar Singh v. Lala Kanshi Ram (A I R 1917 P C 156) the introduction of a plaintiff or of a defendant for one stage of a suit is an introduction for all, stages. K. B. A. Petition accepted. Cases remanded.